VOL.

541,DECEMBER27,2007

371

Sy vs. Court of Appeals

*

G.R.No.124518.December27,2007.

WILSON SY, petitioner, vs. COURT OF APPEALS,

Regional Trial Court of Manila, Branch 48, and
MERCEDESTANUYSY,respondents.
Parent and Child; Family Code; Custody; Legal Separation; In
case of legal separation of the parents, the custody of the minor
children shall be awarded to the innocent spouse, unless otherwise
directed by the court in the interest of the minor children, but when
the husband and wife are living separately and apart from each
other, without decree of the court, the court shall award the care,
custody, and control of each child as will be for his best
interest.In case of legal separation of the parents, the custody of
theminorchildrenshallbeawardedtotheinnocentspouse,unless
otherwisedirectedbythecourtintheinterestoftheminorchildren.
But when the husband and wife are living separately and apart
fromeachother,withoutdecreeofthecourt,thecourtshallaward
the care, custody, and control of each child as will be for his best
interest, permitting the child to choose which parent he prefers to
live with if he is over seven (7) years of age unless the parent so
chosen be unfit to take charge of the child by reason of moral
depravity,habitualdrunkennessorpoverty.
Same; Same; Same; The law favors the mother if she is a fit and
proper person to have custody of her children so that they may not
only receive her attention, care, supervision but also have the
advantage and benefit of a mothers love and devotion for which
there is no substitute.Inallcontroversiesregardingthecustodyof
minors, the sole and foremost consideration is the physical,
educational,socialandmoralwelfareofthechildconcerned,taking
intoaccounttherespectiveresourcesandsocialandmoralsituations
of the contending parents. However, the law favors the mother if
sheisafitandproperpersontohavecustodyofherchildrensothat
they may not only receive her attention, care, supervision but also
havetheadvantageandbenefitofamothersloveanddevotionfor
which there is no substitute. Generally, the love, solicitude and
devotionofamothercannotbereplacedbyanotherandareworth
moretoa
_______________
* SECONDDIVISION.

372

372

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

childoftenderyearsthanallotherthingscombined.TheCivilCode
Commission, in recommending the preference for the mother,
explained,thus:Thegeneralruleisrecommendedinordertoavoid
manyatragedywhereamotherhasseenherbabytornawayfrom
her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the
rule has to be for compelling reasons for the good of the child:
those cases must indeed be rare, if the mothers heart is not to be
undulyhurt.Ifshehaserred,asincasesofadultery,thepenaltyof
imprisonment and the (relative) divorce decree will ordinarily be
sufficient punishment for her. Moreover, her moral dereliction will
not have any effect upon the baby who is as yet unable to
understandthesituation.
Same; Same; Same; Habeas Corpus ; Section 6, Rule 99 of the
Rules of Court (Rule on Adoption and Custody of Minors) expressly
acknowledges and authorizes that the matter of care and custody of
the children may be raised and adjudicated as an incident to any
proceeding, such as a case for habeas corpus.This preference
favoringthemotheroverthefatherisevenreiteratedinSection6,
Rule99oftheRulesofCourt(theRuleonAdoptionandCustodyof
Minors)underscoringitssignificance,towit:xxxTheabovequoted
provisionexpresslyacknowledgesandauthorizesthatthematterof
care and custody of the children may be raised and adjudicated as
anincidenttoanyproceeding,suchasacaseforhabeas corpus.
Same; Same; Same; The determination of whether the mother is
fit or unfit to have custody over the children is a matter well within
the sound discretion of the trial court, and unless it is shown that
said discretion has been abused the selection will not be interfered
with.Absentanycompellingreasontothecontrary,thetrialcourt
was correct in restoring the custody of the children to the mother,
hereinrespondent,thechildrenbeinglessthansevenyearsofage,
at least at the time the case was decided. Moreover, petitioners
contention that respondent is unfit to have custody over the minor
childrenhasnotbeensubstantiatedasfoundbybothcourtsbelow.
Thus,itisalreadytoolateforpetitionertoreiteratetheassertionfor
onlyquestionsoflawmayberaisedbeforethisCourt.Furthermore,
the determination of whether the mother is fit or unfit to have
custody over the children is a matter well within the sound
discretion of the trial court, and unless it is shown that said
discretionhasbeenabusedtheselectionwillnotbeinterferedwith.

373

VOL.541,DECEMBER27,2007

373

Sy vs. Court of Appeals

Same; Same; Same; Support; Su pport must be demanded and
the right to it established before it becomes payable, for the right to
support does not arise from the mere fact of relationship, even from
the relationship of parents and children, but from imperative

necessity without which it cannot be demanded, and the law

presumes that such necessity does not exist unless support is
demanded.Article 203 of the Family Code states that the
obligation to give support is demandable from the time the person
whohasarighttoreceivethesameneedsitformaintenance,butit
shall not be paid except from the date of judicial or extrajudicial
demand. The case of Jocson v. The Empire Ins. Co. and Jocson
Lagniton explains the rationale for this rule: x x x Support does
include what is necessary for the education and clothing of the
personentitledthereto(Art.290,NewCivilCode).Butsupportmust
be demanded and the right to it established before it becomes
payable(Art.298,NewCivilCode;Marcelo v. Estacio,70Phil.215).
For the right to support does not arise from the mere fact of
relationship,evenfromtherelationshipofparentsandchildren,but
from imperative necessity without which it cannot be demanded,
and the law presumes that such necessity does not exist unless
support is demanded (Civil Code of the Philippines, Annotated,
Tolentino,Vol.1,p.181,citing8Manresa685).Inthepresentcase,
it does not appear that support for the minors, be it only for their
education and clothing, was ever demanded from their father and
the need for it duly established. The need for support, as already
stated,cannotbepresumed,andespeciallymustthisbetrueinthe
present case where it appears that the minors had means of their
own.
Same; Same; Same; Same; Where the issue of support was tried
with the implied consent of the parties, it should be treated in all
respects as if it had been raised in the pleadings, and since there
was implied consent, even if no motion had been filed and no
amendment had been ordered, the trial court could validly proceed
to render a judgment on the issue.ApplyingSection5,Rule10of
the 1997 Rules of Civil Procedure, since the issue of support was
triedwiththeimpliedconsentoftheparties,itshouldbetreatedin
allrespectsasifithadbeenraisedinthepleadings.Andsincethere
was implied consent, even if no motion had been filed and no
amendment had been ordered, the Court holds that the trial court
validlyrenderedajudgmentontheissue.Significantly,inthecase
ofBank of America v. American Realty Corporation,321SCRA659
(1999),theCourt
374

374

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

stated: There have been instances where the Court has held that
evenwithoutthenecessaryamendment,theamountprovedatthe
trial may be validly awarded, as in Tuazon v. Bolanos (95 Phil.
106),wherewesaidthatifthefactsshownentitledplaintifftorelief
other than that asked for, no amendment to the complaint was
necessary,especiallywheredefendanthadhimselfraisedthepoint
on which recovery was based. The appellate court could treat the
pleading as amended to conform to the evidence although the
pleadings were actually not amended. Amendment is also
unnecessarywhenonlyclericalerrorornonsubstantialmattersare
involved,asweheldinBank of the Philippine Islands vs. Laguna

(48 Phil. 5). In Co Tiamco v. Diaz (75 Phil. 672), we stressed that
the rule on amendment need not be applied rigidly, particularly
wherenosurpriseorprejudiceiscausedtheobjectingparty.Andin
the recent case of National Power Corporation v. Court of Appeals
(113 SCRA 556), we held that where there is a variance in the
defendants pleadings and the evidence adduced by it at the trial,
the Court may treat the pleading as amended to conform with the
evidence.

PETITION for review on certiorari of the decision and

resolutionoftheCourtofAppeals.
ThefactsarestatedintheopinionoftheCourt.
Farcon, Gabriel, Farcon and Associatesforpetitioner.
Dante H. Cortezforrespondent.
TINGA, J.:
1

InthisPetitionforReviewonCertiorari underRule45of
the 1997 Rules of2 Civil Procedure, petitioner Wilson Sy
assailstheDecision dated29February1996oftheCourtof
3
AppealsinCAG.R.SPNo.38936anditsResolution dated
15April1996denyinghismotionforreconsideration.
_______________
1Rollo,pp.2752;dated24May1996.
2 Id., at pp. 720; penned by Associate Justice Minerva P. Gonzaga

Reyes with the concurrence of Associate Justices Buenaventura J.

GuerreroandRomeoA.Brawner.
3Id.,atpp.7072.

375

VOL.541,DECEMBER27,2007

375

Sy vs. Court of Appeals

Thefollowingaretheantecedents:
On 19 January 1994, respondent Mercedes Tan UySy
filedapetitionforhabeas corpusagainstpetitionerWilson
Sy before the Regional Trial Court of Manila, Branch 48,
docketed as Special Proceeding No. 9469002. Respondent
prayed that said writ be issued ordering petitioner to
producetheirminorchildrenVanessaandJeremiahbefore
thecourtandthatafterhearing,theircareandcustodybe
4
awardedtoherastheirmother.
Inhisanswer,petitionerprayedthatthecustodyofthe
minors be awarded to him instead. Petitioner maintained
thatrespondentwasunfittotakecustodyoftheminors.He
adduced the following reasons: firstly, respondent
abandoned her family in 1992; secondly, she is mentally
unstable;andthirdly,shecannotprovidepropercaretothe
5
children.
Aftertrial,thetrialcourtcausedtheissuanceofawritof
habeas corpus and awarded custody of the children to
respondent,towit:
WHEREFORE, judgment is hereby rendered maintaining to the
petitioner the custody of the minors Vanessa and Jeremiah, all
surnamedUySy,without,however,prejudicetothevisitorialrights

ofthefather,hereinrespondent,andthetemporaryarrangementof
thecustodymadebythepartiesduringpendencyofthisproceeding
is hereby revoked, and without any further effect. The Court
furtherorderstherespondenttopaybywayofmonthlysupportfor
the minors, the amount of P50,000.00 payable to petitioner from
[the]dateofjudgmentforfailureonthepartofrespondenttoshow
by preponderance of evidence that the petitioner is unfit to the
6
custodyoftheminorchildrenwhoareonly6and4yearsold.

PetitionerappealedtheorderofthetrialcourttotheCourt
ofAppeals.Beforetheappellatecourt,heallegedthatthe
_______________
4Id.,atp.8.
5Id.,atpp.910,31.
6 Id., at p. 7; dispositive portion of the Decision dated 14 December

1994pennedbyHon.DemetrioM.Batario,Jr.
376

376

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

trial court erred: (1) in awarding the custody of the minor

children solely to respondent; and (2) in ordering him to
providerespondentsupportintheamountofP50,000.00per
7
month.
The Court of Appeals found no merit in the appeal and
affirmedthedecisionofthetrialcourt.TheCourtofAppeals
didnotfindanyreasontodisturbtheconclusionsofthetrial
court, particularly petitioners failure to prove by
preponderanceofevidencethatrespondentwasunfittotake
custodyovertheminorchildren.
TheCourtofAppealsheldthatpetitionerwasnotableto
substantiate his contention that respondent was unfit to
have custody of the children. On respondents supposed
abandonment of the family, the appellate court found
instead that respondent had been driven away by
petitioners family because of religious differences.
RespondentsstayinTaiwanlikewisecouldhardlybecalled
abandonmentasshehadgonetheretoearnenoughmoney
to reclaim her children. Neither could respondents act of
praying outdoors in the rain be considered as evidence of
insanity as it may simply be an expression of ones faith.
Regarding the allegation that respondent was unable to
provideforadecentdwellingfortheminors,tothecontrary,
theappellatecourtwassatisfiedwithrespondentsproofof
her financial ability
to provide her children with the
8
necessitiesoflife.
As to the second assignment of error, the Court of
Appeals held that questions as to care and custody of
children may be properly raised in a petition for writ of
habeas corpus.Moreover,petitionerwasproperlyheardon
the matter relative to the issue of support. He was
questioned about his sources of income for the purpose of
determininghisabilitytogivesupport.Astothepropriety
oftheamountawarded,theappellatecourtwasunwillingto

alterthetrialcourtsconclusionfor
_______________
7Id.,atp.8.
8Id.,atpp.1516.

377

VOL.541,DECEMBER27,2007

377

Sy vs. Court of Appeals

petitionerdidnotforthrightlytestifyonhisactualincome.
Neither did he produce income tax returns or other
competentevidence,althoughwithinhispowertodoso,to
provide a fair indication of his resources. At any rate, the
appellatecourtdeclaredthatajudgmentofsupportisnever
final and petitioner is not precluded at any time from
seekingamodificationofthesameandproduceevidenceof
9
hisclaim.
PetitionerfiledamotionforreconsiderationoftheCourt
10
ofAppealsdecisionbutthesamewasdenied. Hence,this
appealbycertiorariwhereinpetitionerassertsthat:(1)the
CourtofAppealserredinawardingthecustodyoftheminor
childrensolelytorespondent;(2)theCourtofAppealshad
nojurisdictiontoawardsupportinahabeas corpuscaseas:
(a) support was neither alleged nor prayed for in the
petition;(b)therewasnoexpressorimpliedconsentonthe
part of the parties to litigate the issue; and (c) Section 6,
Rule 99 of the Rules of Court does not apply because the
trial court failed to consider the Civil Code provisions on
support; and (3) the award of P50,000.00 as support is
arbitrary, unjust, unreasonable and tantamount11
to a clear
deprivationofpropertywithoutdueprocessoflaw.
For her part, respondent claims that petitioner had lost
hisprivilegetoraisethefirstissue,havingfailedtoraiseit
before the appellate court. Anent the second issue,
respondent takes refuge in the appellate courts statement
that the questions regarding the care and custody of
children may properly be adjudicated in a habeas corpus
case.Regardingthethirdissue,respondentmaintainsthat
12
theamountofsupportawardediscorrectandproper.
Thereisnomeritinthepetitionregardingthequestion
ofcareandcustodyofthechildren.
_______________
9Id.,atpp.1719.
10Id.,atpp.2123;inaResolutiondated15April1996.
11Id.,atp.37.
12Id.,atpp.8890;Commentdated7October1996.

378

378

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

TheapplicableprovisionisSection213oftheFamilyCode
whichstatesthat:
Section 213. In case of separation of the parents, parental
authorityshallbeexercisedbytheparentdesignatedbytheCourt.
The Court shall take into account all relevant considerations,
especiallythechoiceofthechildoversevenyearsofage,unlessthe
parentisunfit.
No child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order
otherwise.

Incaseoflegalseparationoftheparents,thecustodyofthe
minor children shall be awarded to the innocent spouse,
unlessotherwisedirectedbythecourtintheinterestofthe
13
minorchildren. Butwhenthehusbandandwifeareliving
separatelyandapartfromeachother,withoutdecreeofthe
court,thecourtshallawardthecare,custody,andcontrolof
each child as will be for his best interest, permitting the
childtochoosewhichparenthepreferstolivewithifheis
over seven (7) years of age unless the parent so chosen be
unfit to take charge of the child by reason
of moral
14
depravity,habitualdrunkennessorpoverty.
Inallcontroversiesregardingthecustodyofminors,the
soleandforemostconsiderationisthephysical,educational,
socialandmoralwelfareofthechildconcerned,takinginto
account the respective resources 15
and social and moral
situationsofthecontendingparents.
However, the law favors the mother if she is a fit and
proper person to have custody of her children so that they
may not only receive her attention, care, supervision but
alsohavetheadvantageandbenefitofamothersloveand
devo
_______________
13

FAMILY CODE, Art. 63; TOLENTINO, CIVIL CODE OF THE

PHILIPPINES,Vol.1,p.609.
14Id.,atp.610.
15 Unson

III v. Navarro, No. 52242, 17 November 1980, 101 SCRA

183,189.
379

VOL.541,DECEMBER27,2007

379

Sy vs. Court of Appeals

16

tion for which there is no substitute. Generally, the love,

solicitude and devotion of a mother cannot be replaced by
anotherandareworthmoretoachildoftenderyearsthan
17
allotherthingscombined. TheCivilCodeCommission,in
recommending the preference for the mother, explained,
thus:
Thegeneralruleisrecommendedinordertoavoidmanyatragedy
whereamotherhasseenherbabytornawayfromher.Nomancan
soundthedeepsorrowsofamotherwhoisdeprivedofherchildof
tender age. The exception allowed by the rule has to be for
compelling reasons for the good of the child: those cases must

indeedberare,ifthemothersheartisnottobeundulyhurt.Ifshe
haserred,asincasesofadultery,thepenaltyofimprisonmentand
the(relative)divorcedecreewillordinarilybesufficientpunishment
for her. Moreover, her moral dereliction will not have any effect
18
uponthebabywhoisasyetunabletounderstandthesituation.

Thispreferencefavoringthemotheroverthefatheriseven
reiterated in Section 6, Rule 99 of the Rules of Court (the
RuleonAdoptionandCustodyofMinors)underscoringits
significance,towit:
SEC. 6. Proceedings as to child whose parents are separated.
Appeal.Whenhusbandandwifearedivorcedorlivingseparately
andapartfromeachother,andthequestionastothecare,custody
andcontrolofachildorchildrenoftheirmarriageisbroughtbefore
a Regional Trial Court by petition or as an incident to any
other proceeding, the court, upon hearing the testimony as may
bepertinent,shallawardthecare,custodyandcontrolofeachsuch
child as will be for its best interest, permitting the child to choose
which parent it prefers to live with if it be over ten years of age,
unless the parent so chosen be unfit to take charge of the child by
reason of moral depravity, habitual drunkenness, incapacity, or
poverty. If upon such hearing, it appears that both parents are
improperper
_______________
16 STA.MARIA,JR., PERSONS

AND FAMILY RELATIONS, p. 697, citing

Peavey v. Peavey,85Nev.571,460P2d110.
17Id.,atp.698,citingHorst
18 Lacson

v. Mclain,466Sw2d187.

v. San JoseLacson, 133 Phil. 884, 894895; 24 SCRA 837, 847

(1968).

380

380

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

sons to have the care, custody, and control of the child, the court
may either designate the paternal or maternal grandparent of the
child,orhisoldestbrotherorsister,orsomereputableanddiscreet
person to take charge of such child, or commit it to any suitable
asylum, childrens home, or benevolent society. The court may in
conformitywiththeprovisionsoftheCivilCodeordereitherorboth
parents to support or help support said child, irrespective of who
may be its custodian, and may make any order that is just and
reasonable permitting the parent who is deprived of its care and
custodytovisitthechildorhavetemporarycustodythereof.Either
parent may appeal from an order made in accordance with the
provisions of this section. No child under seven years of age
shall be separated from its mother, unless the court finds
there are compelling reasons therefor.(Emphasissupplied)

The abovequoted provision expressly acknowledges and

authorizes that the matter of care and custody of the
children may be raised and adjudicated as an incident to
anyproceeding,suchasacaseforhabeas corpus.
Evidently,absentanycompellingreasontothecontrary,
the trial court was correct in restoring the custody of the

children to the mother, herein respondent, the children

beinglessthansevenyearsofage,atleastatthetimethe
case was decided. Moreover, petitioners contention that
respondentisunfittohavecustodyovertheminorchildren
has not been substantiated as found by both courts below.
Thus, it is already too late for petitioner to reiterate the
assertionforonlyquestionsoflawmayberaisedbeforethis
Court. Furthermore, the determination of whether the
motherisfitorunfittohavecustodyoverthechildrenisa
matter well within the sound discretion of the trial court,
andunlessitisshownthatsaiddiscretionhasbeenabused
19
theselectionwillnotbeinterferedwith.
Consequently,theCourtaffirmstheawardofcustodyin
respondentsfavor.
Now,theissueofsupport.
_______________
19Pelayo

v. Lavin Aedo,40Phil.501,504(1919).
381

VOL.541,DECEMBER27,2007

381

Sy vs. Court of Appeals

Article203oftheFamilyCodestatesthattheobligationto
give support is demandable from the time the person who
hasarighttoreceivethesameneedsitformaintenance,but
it shall not be paid except from the date of judicial or
extrajudicialdemand.ThecaseofJocson
v. The Empire Ins.
20
Co. and Jocson Lagniton explains the rationale for this
rule:
xxxSupportdoesincludewhatisnecessaryfortheeducationand
clothing of the person entitled thereto (Art. 290, New Civil Code).
Butsupportmustbedemandedandtherighttoitestablishedbefore
itbecomespayable(Art.298,NewCivilCode;Marcelo v. Estacio,70
Phil.215).Fortherighttosupportdoesnotarisefromthemerefact
ofrelationship,evenfromtherelationshipofparentsandchildren,
but from imperative necessity without which it cannot be
demanded,andthelawpresumesthatsuchnecessitydoesnotexist
unless support is demanded (Civil Code of the Philippines,
Annotated,Tolentino,Vol.1,p.181,citing8Manresa685).Inthe
present case, it does not appear that support for the minors, be it
onlyfortheireducationandclothing,waseverdemandedfromtheir
fatherandtheneedforitdulyestablished.Theneedforsupport,as
already stated, cannot be presumed, and especially must this be
true in the present case where it appears that the minors had
21
meansoftheirown.

Asintimatedearlier,theCourtagreeswiththecourtsbelow
22
thatSection6,Rule99 oftheRulesofCourtpermitsthe
_______________
20103Phil.580(1958).
21Id.,atpp.582583.
22

SEC. 6. Proceedings as to child whose parents are separated.

Appeal.When husband and wife are divorced or living separately and

apart from each other, and the question as to the care, custody and
control of a child or children of their marriage is brought before a
Regional Trial Court by petition or as an incident to any other
proceeding, the court, upon hearing the testimony as may be
pertinent, shall award the care, custody and control of each such child
as will be for its best interest, permitting the child to choose which
parent it prefers to live with if it be over ten years of age, unless the
parentsochosenbeunfittotakechargeofthechildbyreasonofmoral
depravity,habitualdrunkenness,incapacity,or
382

382

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

ventilationofthequestionregardingthecareandcustodyof
thechildrenasanincidenttoanyproceeding,evenahabeas
corpus proceeding. Petitioner would have us believe,
however,
that since respondents petition did not include a
23
prayer for support of the children in accordance with the
abovequotedFamilyCodeprovision,thetrialcourtwasnot
justified in awarding support in respondents favor. In
addition, petitioner claims that he did not give consent to
the trial and the threshing
out of the issue as it was not
24
raisedinthepleadings. Heclaimsthatinfact,hetestified
on his financial status only to prove that he is financially
able to provide for his children and25not for the purpose of
determining the amount of support. Besides, he contends
thatthetrialcourt
_______________
poverty. If upon such hearing, it appears that both parents are
improperpersonstohavethecare,custody,andcontrolofthechild,the
courtmayeitherdesignatethepaternalormaternalgrandparentofthe
child, or his oldest brother or sister, or some reputable and discreet
person to take charge of such child, or commit it to any suitable
asylum, childrens home, or benevolent society. The court may in
conformity with the provisions of the Civil Code order either or both
parentstosupportorhelpsupportsaidchild,irrespectiveofwhomaybe
its custodian, and may make any order that is just and reasonable
permittingtheparentwhoisdeprivedofitscareandcustodytovisitthe
childorhavetemporarycustodythereof.Eitherparentmayappealfrom
an order made in accordance with the provisions of this section. No
child under seven years of age shall be separated from its mother,
unlessthecourtfindstherearecompellingreasonstherefor.(Emphasis
supplied)
23Records,Vol.1,p.3.

WHEREFORE,itismostrespectfullyprayedthata[W]ritofHabeas
CorpusbeissuedbythisHonorableCourt,commandingWilsonL.Syto
producethebodiesofVanessaandJeremiahUySybeforethiscourtat
the time and place specified, and to summon the respondent then and
there to appear and to show cause for their detention; and that, after
hearing, said minors be turned over to the care and custody of their
motherMercedesUySy.
24CARollo,pp.1617.
25Id.,atp.19ofPetitionersMemorandum.

383

VOL.541,DECEMBER27,2007

383

Sy vs. Court of Appeals

didnotordertheamendmentofthepleadingstoconformto
26
the evidence presented pursuant to Section 5, Rule 10 of
the1997RulesofCivilProcedure,anaspectthatsupports
hiscontentionthatthepartiesneverconsented,expresslyor
27
impliedly,totrytheissueofsupport.
The Court is not convinced. Contrary to petitioners
assertions, respondent testified during trial, without any
objectiononpetitionerspart,regardingtheneedforsupport
forthechildrenseducationandothernecessities,viz.:
ADDLDIRECTEXAMINATIONOFTHEWITNESS
MERCEDESTANUYSY
Q:

WiththekindpermissionofthisHonorableCourt.

Q:

Ms.Sy,thecustodyofthetwominors[,]ofcourse[,]require
someexpensesonyourpartnotwithstandingthatyousaidyou
havesavingsintendedforthem,isitnot?

A:

Yes,sir.

Q:

Andwhatisthenatureoftheseexpensesthatyouexpectto
disburseforthechildren?

A:

Forthemedicineorhealthcare.

_______________
26

SEC. 5. Amendment to conform to or authorize presentation of

evidence.When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all
respects, as if they had been raised in the pleadings. Such amendment
of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to amend does not
affecttheresultofthetrialoftheseissues.Ifevidenceisobjectedtoat
the trial on the ground that it is not within the issues made by the
pleadings,thecourtmayallowthepleadingstobeamendedandshalldo
sowithliberalityifthepresentationofthemeritsoftheactionandthe
ends of substantial justice will be subserved thereby. The court may
grantacontinuancetoenabletheamendmenttobemade.
27Rollo,p.17.

384

384

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

Q: Whatelse?
A: Foreducation,foremergencyexpenses,forbasicallyfor
food.
Q: Inyourestimate,howmuchwouldtheseexpensesbe
permonth?
A: Well,Ithink,perhapsP50,000.00,sir.
Q: Whichtherespondentshouldfurnish?

A: Yes,sir.
ATTY.CORTEZ

28

Thatisallforthewitness,YourHonor.

Moreover, based on the transcript of stenographic notes,

petitionerwasclearlymadeawarethattheissueofsupport
wasbeingdeliberatedupon,towit:
WITNESS:
29

WILSONSY:willbetestifyingunderthesameoath.

xxxx

ATTY.ALBON:
Q: InthehearingofJuly23,1994asappearingonpage3,
MercedesSytestifiedthatshewouldbeneeding
P50,000.00amonthexpensesforherchildren,whatcan
yousayaboutthat?
30

A: Thatisadillusion[sic]onherpart.

The trial court judge even propounded questions to

petitionerregardinghissourcesofincomeforthepurposeof
determining the amount of support to be given to the
children:
COURT:
Iwanttofindouthowmuchhisincomenowforthe
purposesofgivingsupporttothechildren.Please
answerthequestion
_______________
28Records,Vol.1;TSN,dated25July1994,p.3.
29Id.,atp.547;TSN,dated4November1994,p.6.
30Id.,atp.552;TSN,4November1994,p.11.

385

VOL.541,DECEMBER27,2007

385

Sy vs. Court of Appeals

WITNESS:
A: Sharesofstocks.
ATTY.CORTEZ:
Q: Ashares[sic]ofstockistheevidenceofyourinvestment
inthecorporation.Myquestionis:Whatinvestmentdid
youputintoenableyoutogetashare,wasitmoneyor
property?
A: Thereisnomoneybutitwasgivenbymyfather.
COURT:
Q: Uponthedeathofyourfatheryoujustinheritedit?
A: Before.
Q: Afterthedeath,didyounotacquiresomeoftheshares
ofyourfather?

A: No,yourHonor.
Q: Whathappenedtothesharesofyourfather?
A: Itiswithmymother.
xxxx
COURT:

Nevermindtheshareofthemother.Whatismaterialis
hisshare.

ATTY.CORTEZ:
Q: Howmanysharesdoyouhaveinthecorporation?
A: RightnowIhaveonlyten(10)shares.
Q: Whatisthevalueofthat[sic]shares?
A: I[donot]giveanyimportance.
COURT
Q: Forpurposesofthiscase,theCourtisaskingyouhow
muchisyourshare?
A: I[donot]howtoappraise.
Q: Moreorless,howmuch?Usethewordmoreorless,is
thatonemillionmoreorless,2million,moreorless,10
million,moreorless?Anyway,thisisnotaBIR
proceeding,thisisaCourtproceeding?
A: IwanttospeakthetruthbutI[donot]know.Ididnot
evenseetheaccount.
COURT:

Proceed.
386

386

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

ATTY.CORTEZ
xxxx
Q: Atthattimeofyourfathersdeath[,]youwere[sic]
alreadyholdingten(10)sharesorwasitless?
A: More.
Q: Morethanten(10)shares?
A: Yes,sir.
COURT
Q: Whatistheparvalueofthatone(1)share?
A: I[donot]know,yourHonor.
xxxx
COURT:

Letitremainthatheownsten(10)shares.

ATTY.CORTEZ:
xxxx
A: Yes,10shares.TheothersharesIalreadysoldit.

Q: Howmanysharesdidyousell?
A: Ionlyhave10sharesnow.Idontknowhowmany31
sharesthatIhaveleft.Ionlyknowthe20shares.
32

Applying Section 5, Rule 10 of the 1997 Rules of Civil

Procedure, since the issue of support was tried with the
implied
_______________
31Id.,atpp.563566,TSN,4November1994,pp.2225.
32

SEC. 5. Amendment to conform to or authorize presentation of

evidence.When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all
respectsasiftheyhadbeenraisedinthepleadings.Suchamendmentof
the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to amend does not
affecttheresultofthetrialoftheseissues.Ifevidenceisobjectedtoat
the trial on the ground that it is not within the issues made by the
pleadings,thecourtmayallowthepleadingstobeamendedandshalldo
sowithliberalityifthepresentationofthemeritsoftheactionandthe
ends of substantial justice will be subserved thereby. The court may
grantacontinuancetoenabletheamendmenttobemade.
387

VOL.541,DECEMBER27,2007

387

Sy vs. Court of Appeals

consentoftheparties,itshouldbetreatedinallrespectsas
ifithadbeenraisedinthepleadings.Andsincetherewas
implied consent, even if no motion had been filed and no
amendmenthadbeenordered,theCourtholdsthatthetrial
33
court validly rendered a judgment on the issue.
Significantly, in the
case of Bank of America v. American
34
Realty Corporation, theCourtstated:
There have been instances where the Court has held that even
without the necessary amendment, the amount proved at the trial
may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106),
wherewesaidthatifthefactsshownentitledplaintifftoreliefother
thanthataskedfor,noamendmenttothecomplaintwasnecessary,
especially where defendant had himself raised the point on which
recoverywasbased.Theappellatecourtcouldtreatthepleadingas
amended to conform to the evidence although the pleadings were
actually not amended. Amendment is also unnecessary when only
clericalerrorornonsubstantialmattersareinvolved,asweheldin
Bank of the Philippine Islands vs. Laguna (48 Phil. 5). In Co
Tiamco v. Diaz (75 Phil. 672), we stressed that the rule on
amendment need not be applied rigidly, particularly where no
surpriseorprejudiceiscausedtheobjectingparty.Andintherecent
caseofNational Power Corporation v. Court of Appeals(113SCRA
556), we held that where there is a variance in the defendants
pleadingsandtheevidenceadducedbyitatthetrial,theCourtmay
35
treatthepleadingasamendedtoconformwiththeevidence.

The Court likewise affirms the award of P50,000.00 as

support for the minor children. As found by both courts,
petitioners representations regarding his familys wealth
and his capability to provide for his family more than
provided a fair indication of his financial standing even
36
thoughheprovedtobelessthanforthrightonthematter.
Inanyevent,thisawardofsupportismerelyprovisionalas
theamountmaybe
_______________
33HERRERA,REMEDIAL

LAW,Vol.1,p.598.

34378Phil.1279;321SCRA659(1999).
35Id.,atpp.13011302;p.680.
36Rollo,pp.1819.

388

388

SUPREMECOURTREPORTSANNOTATED
Sy vs. Court of Appeals

modified or altered in accordance with the increased or

decreased37needs of the needy party and with the means of
thegiver.
WHEREFORE,theDecisiondated29February1996of
theEleventhDivisionoftheCourtofAppealsinCAG.R.SP
38
No. 38936 and its Resolution dated 15 April 1996 are
AFFIRMED.Costsagainstpetitioner.
SOORDERED.
Quisumbing (Chairperson), Carpio, CarpioMorales
andVelasco, Jr., JJ.,concur.
Judgment and resolution affirmed.
Notes.The grant of support in a petition for habeas
corpus is justified where the respondent has expressed
willingness to support the minor child. (David vs. Court of
Appeals,250SCRA82[1995])
The award of temporary custody is provisional and
subjecttochangeascircumstancesmaywarranteventhe
award of child custody after a judgment on a marriage
annulmentisnotpermanent,asitmaybereexaminedand
adjusted if and when the parent who was given custody
becomesunfit.(PabloGualberto vs. Gualberto V,461SCRA
450[2005])
TheConventionontheRightsoftheChildprovidesthat
inallactionsconcerningchildren,whetherundertakenby
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
(GamboaHirsch vs. Court of Appeals,527SCRA380[2007])
o0o
_______________
37

Advincula v. Advincula, 119 Phil. 448, 451; 10 SCRA 189, 192

(1964).

38Supranote3.

389

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